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Bits & Pieces

Lafayette v. Moody

2021 WL 1397538

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
District Court of Appeal of Florida, Fourth District.
Willie LAFAYETTE, individually, and Southeastern Freight Lines, Inc., Appellants/Cross Appellees,
v.
Samuel A. MOODY, individually, Rita Genovese, individually, and as Personal Representative of the Estate of Michael A. Genovese, Appellees/Cross Appellants.
No. 4D18-3687
|
[April 14, 2021]
Appeal and cross-appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; A.B. Majeed, Senior Judge; L.T. Case No. 2013CA002467.
Attorneys and Law Firms
Sarah Lahlou-Amine of Banker Lopez Gassler P.A., Tampa, for appellants/cross appellees.
Elaine D. Walter, Yvette R. Lavelle, and Craig J. Shankman of Boyd Richards Parker Colonnelli, Miami, for appellee/cross appellant, Samuel A. Moody.
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Steven G. Calamusa of Gordon & Partners, P.A., West Palm Beach, for appellee/cross appellant, Rita Genovese.
Opinion

Klingensmith, J.

*1 Appellants Willie Lafayette and his employer Southeastern Freight Lines, Inc. appeal the trial court’s order granting appellee Rita Genovese, the personal representative of the Estate of Michael Genovese, a new trial following a jury verdict in appellants’ favor. Ms. Genovese and Samuel Moody, a co-defendant of Lafayette and Southeastern, both cross-appeal regarding issues stemming from that same order. We agree that the trial court committed several errors during the trial and post-trial proceedings for which a new trial is the only appropriate remedy.

In 2012, Michael Genovese was driving northbound on a two-lane highway that was under construction and lined with concrete barriers on both sides, leaving no shoulder or emergency stopping lane. Mr. Genovese was traveling behind Samuel Moody’s vehicle, which was also in the northbound lane. At the same time, Lafayette was driving southbound in one of Southeastern’s tractor-trailers. Moody’s and Lafayette’s vehicles were approaching each other at opposite ends of an S-curve, and according to the evidence, both cars were driving under the posted speed limit. At some point, Moody’s vehicle crossed over the centerline and into Lafayette’s lane. Neither vehicle was able to avoid the collision, and Moody’s vehicle “sideswiped” Lafayette’s tractor-trailer near its left steer axle and made another impact near the left rear of the truck. Because of this collision, Lafayette’s tractor-trailer jackknifed and entered the northbound lane where it crashed into Mr. Genovese’s car, killing Mr. Genovese. The Estate of Mr. Genovese filed a wrongful death lawsuit against Moody, Lafayette, and Southeastern. Southeastern also brought a cross-claim against Moody for the damage incurred to its tractor-trailer from the accident.

Trial
During jury selection, Ms. Genovese and Moody endeavored to strike potential jurors whom they believed might have potential biases favoring either Southeastern specifically or truck drivers in general. During voir dire, several prospective jurors were struck for cause because they either explicitly articulated, or it was otherwise clear, that they were biased in favor of truck drivers.

One prospective juror, C.W., indicated that her husband worked as a truck driver for over thirty years. However, unlike the other jurors who had ties to the trucking industry, C.W. stated that nothing about her husband’s occupation would cause her to favor “one side or the other.” When asked if she would like to serve on the jury and why, C.W. answered yes, because “everybody deserves to be heard.” Neither Moody nor Ms. Genovese made a cause challenge against C.W. However, before voir dire ended, Ms. Genovese decided to use a peremptory strike on her. Because C.W. was African American, and at this point was the only African American remaining on the prospective jury panel, appellants requested a race-neutral reason from counsel for the peremptory strike. Ms. Genovese first asserted that C.W.’s husband’s significant experience as a truck driver was the reason for the challenge. Moody’s counsel accepted this as a race-neutral reason; counsel for appellants did not. Appellants stated that if this was a true concern, Ms. Genovese should have asked to strike C.W. for cause as she did with the other jurors who had ties to the trucking industry. In response, counsel for Ms. Genovese also proffered that C.W. knew another member of the prospective jury panel (who was not ultimately selected as a member of the panel).

*2 The trial court denied Ms. Genovese’s peremptory strike, ruling that she “failed to meet the race neutral test as enunciated in the Neil/Batson cases.”1 C.W. was selected as a member of the jury panel, and Ms. Genovese noted her objection to that selection on the record.

The day after the jury was selected, counsel for Ms. Genovese revisited the issue regarding juror C.W. by noting that the reasons provided for striking her, namely C.W.’s husband’s experience as a truck driver, were genuine. Counsel also stated that C.W.’s perceived eagerness to serve on the jury was another reason to support a peremptory strike because it suggested that she wanted to defend the honor of her husband’s profession. Finally, Ms. Genovese informed the trial court that it did not make a finding that either of the two reasons she initially offered for the peremptory challenge were not genuine. In response, appellants repeated their argument that Ms. Genovese should have used a cause challenge on C.W. if she wished to strike her due to her ties to the trucking industry. When Moody’s counsel was asked to respond, he voiced his agreement with Ms. Genovese’s request for a peremptory strike of C.W. because C.W. was “susceptible to being influenced” by her marriage to a truck driver. Moody’s counsel agreed that this was a genuine and race-neutral reason.

Despite the proffered explanation from counsel, the trial court nonetheless stood by its original ruling denying Ms. Genovese’s peremptory strike. The trial court noted that Neil, Batson, and Melbourne2 discussed the “reasonableness” and “genuineness” associated with the use of a peremptory strike. It stated that those cases required courts to place particular emphasis on the “genuineness” of the reasons stated for the challenge. The trial court then stated for the record that it did not believe that Ms. Genovese’s reason for striking C.W. was race neutral; thus, it did not believe that the reason given for the strike was genuine. In so ruling, the trial court appeared to focus considerably on the racial make-up of the jury—C.W. was the only African American left on the panel—as well as a minority group’s right to serve on a jury.

During the trial, the attorneys and numerous witnesses recounted the details of the fatal car accident. Both sides emphasized aspects of the testimony given by both Lafayette and Moody as they were the ones involved in the accident.

Lafayette testified he was very familiar with this stretch of the highway because he drove it every day on his package delivery route. On the day of the accident, Lafayette said he had been talking on his cell phone with the aid of a hands-free device but had ended the call before entering the construction zone. He first saw Moody’s vehicle when it was 600 feet away from him. At that time, there was no indication that Moody’s vehicle would enter his lane. After this, Lafayette checked his mirrors to ensure that he was maintaining his lane in the construction area. The next time Lafayette saw Moody’s vehicle, it was twelve to fifteen feet in front of his truck and suddenly crossing into his lane. Lafayette also said that he saw Moody leaning over. Lafayette testified that he tried to take action to avoid the accident, but he was unable to. The impact of the collision with Moody’s car knocked his hands off the steering wheel and caused him to lose control of the truck.

*3 Ms. Genovese called witnesses to support her claim that Lafayette was inattentive when the accident occurred. One witness testified that Lafayette did not need to check his mirrors and should have kept his eyes on the road, particularly because he was travelling in a construction zone. Therefore, Ms. Genovese theorized that if Lafayette had kept his eyes on the road from the time he saw Moody’s vehicle 600 feet away (which she noted was the approximate length of two football fields), instead of checking his mirrors and talking on his cell phone, he would have had enough time to react to Moody’s lane shift and avoid the crash. Additionally, Ms. Genovese argued that the impact of Moody’s and Lafayette’s vehicles was insufficient to throw Lafayette’s hands off the steering wheel as Lafayette claimed.

Moody testified that he could not recall whether he crossed the center of the road and into Lafayette’s lane. He stated that he was knocked unconscious after the accident and did not remember. Moody’s expert confirmed, however, that Moody’s vehicle crossed into Lafayette’s lane before crashing into the tractor trailer.

The trial court then allowed Ms. Genovese to introduce evidence of Lafayette’s driving history with Southeastern to the jury. This evidence included fourteen documented work incidents. Though some of these incidents involved Lafayette’s operation of a tractor-trailer, i.e., backing into a parked car, several others were for non-trucking infractions such as clocking into work early or forgetting to sign after making a delivery.

After the conclusion of a three-week trial, the jury returned a verdict for Ms. Genovese, finding Moody 100% responsible for the accident and awarding her the economic and non-economic damages she sought. The jury found no liability for either Southeastern or Lafayette. The jury also returned a verdict for Southeastern on its cross-claim and awarded it the total amount it sought for the damage to its tractor trailer.

Post-trial motions
Shortly after the verdict, Ms. Genovese and Moody both moved for a new trial. Additionally, Moody made an alternative motion for a judgment notwithstanding the verdict regarding Southeastern’s cross-claim. The trial court granted both Ms. Genovese’s and Moody’s motions for a new trial.

In its order granting Ms. Genovese’s motion, the trial court listed two reasons for its ruling: (1) its finding that the verdict was against the manifest weight of the evidence and (2) its error in denying her peremptory challenge to juror C.W. As to the first reason, the trial court stated that to find the jury’s verdict against the manifest weight of the evidence, it had to determine whether a “reasonable person” would have concluded that the evidence “supported a finding of some negligence, however small” on the part of appellants. Although the trial court acknowledged that both parties presented evidence to support their competing claims, it made the following findings, which it labeled “undisputed”:
(a) That Mr. LAFAYETTE had a driving record that should have caused a loud alarm to his employers, that sooner or later tragedy would be inevitable;
(b) That sufficient facts were presented that would raise a genuine and good faith issue about the attentiveness and alertness on the part of Mr. LAFAYETTE on this date at this time and in these circumstances in the mind of a reasonable person;
(c) That Mr. LAFAYETTE was demonstrating inattentiveness in a construction zone that demanded heightened attentiveness;
(d) That Mr. LAFAYETTE admitted to losing sight of Mr. Genovese for a distance of approximately two football fields immediately preceding the deadly crash; and
(e) That in the final analysis, it was Mr. LAFAYETTE who crossed outside of his lane and struck and killed Mr. Genovese.
Based on these “undisputed findings,” the trial court opined the jury’s finding of zero liability against appellants was against the manifest weight of the evidence and a new trial was warranted to cure that error.

*4 Then, as to the second reason, the trial court reviewed its ruling denying Ms. Genovese’s peremptory challenge to juror C.W. The trial court admitted that at the time appellants demanded a race-neutral reason for the peremptory strike, it placed emphasis on the juror’s right to remain on the jury and appellants’ right to have her on the jury because she was, in the court’s words, “a minority.” As such, the trial court said it only evaluated the tone, mood, and manner of the juror’s responses in finding that she could be fair and impartial. However, the trial court admitted that this was not the proper standard and instead, it should have evaluated whether Ms. Genovese’s reason for striking the juror was “genuine” and not race-based. The trial court also opined that in addition to its error in legal analysis, the verdict could have been tainted because of C.W.’s long marriage to a truck driver such that the decision reached by juror C.W. could have been “made outside of record evidence.”

In the trial court’s order granting Moody’s motion for a new trial, it simply referred to its order granting Ms. Genovese’s motion for a new trial. However, the trial court’s order granted, in part, Moody’s motion for judgment notwithstanding the verdict on Southeastern’s cross-claim for damages to its truck. The trial court ruled that Moody should not be liable for the entire amount of damages sustained to Southeastern’s tractor-trailer ($41,961.83) just because the truck was totaled after he hit it. According to the trial court, since the evidence showed that Moody ran into the left side of Lafayette’s truck and damaged two wheels and two tires, Moody should only be liable for that limited amount of damage. It ordered Southeastern to provide an affidavit delineating that amount of damages so that it could determine how much Moody was liable for. Southeastern provided the requested affidavit over objection while noting that it was solely an estimate because the damages were very interrelated and it was not possible to delineate the damage to specific auto parts. A final judgment was entered for the amount stated in the affidavit.

This appeal followed.

Granting new trial based on denial of peremptory challenge
Appellate courts typically review orders granting a new trial for an abuse of discretion. See Fla. Power & Light Co. v. Hayes, 122 So. 3d 408, 412 (Fla. 4th DCA 2013). However, this discretion decreases “the closer an issue comes to being purely legal in nature.” See Costa v. Aberle, 96 So. 3d 959, 962–63 (Fla. 4th DCA 2012). This court explained why in Ford v. Robinson, 403 So. 2d 1379, 1382 (Fla. 4th DCA 1981):
The trial judge who must decide whether to grant a new trial on the proffered ground that some reversible error of law occurred at some point during the trial need only ask … if there was error and if so whether the error was substantially prejudicial. In that instance, the judge is required to sit in essence as an appellate judge. If [the judge] concludes that reversible error has been committed, the judge is obliged to grant a new trial on the same basis that an appellate court would do so. The power of appellate review over the trial judge’s resolution of such alleged errors is quite broad, the appellate court being on an “equal footing” with the trial court.

In this case, one of the reasons listed by the trial court for its grant of a new trial was its conclusion that it improperly applied the standard in the relevant case law when denying Ms. Genovese’s peremptory challenge. Because this conclusion is legal in nature, this court’s standard of review is de novo. See Costa, 96 So. 3d at 962–63.

“[T]o strike the appropriate balance between a party’s right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection,” see Hayes v. State, 94 So. 3d 452, 460–61 (Fla. 2012), receded from on other grounds, State v. Johnson, 295 So. 3d 710 (Fla. 2020), the Florida Supreme Court laid out the following test in Melbourne for trial courts to use when dealing with a race-based objection to a peremptory challenge:
*5 A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
Melbourne, 679 So. 2d at 764 (footnotes omitted).

Of particular importance is the third step of this inquiry, in which “[a] trial court must analyze [the] subjective issue [of] whether a proffered explanation for a challenge is a pretext.” Young v. State, 744 So. 2d 1077, 1082 (Fla. 4th DCA 1999). In other words, the trial court must determine whether the proffered explanation is “genuine[ ]” or whether it “conceals an intent to discriminate based on race.” See id. To make this determination, “the trial court must consider all relevant circumstances surrounding the strike.” See Hayes v. State, 94 So. 3d at 462. “Relevant circumstances may include––but are not limited to––the following: the racial make–up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Melbourne, 679 So. 2d at 764 n.8.

The record shows that the trial court properly followed the first two steps of the Melbourne test. Under step one, appellants timely objected to Ms. Genovese’s challenge, noted that the potential juror was an African American, and requested that the trial court ask Ms. Genovese the reason for her strike. See id. at 764. When asked, and in accordance with step two, Ms. Genovese explained that she sought to strike C.W. because of her marriage to a truck driver. See id.

However, the trial court erred in applying the Melbourne test at step three, specifically in its analysis of the genuineness of Ms. Genovese’s stated reason for challenging C.W. See id. The stated reason—C.W.’s potential bias—was clearly race neutral. See Busby v. State, 894 So. 2d 88, 99 (Fla. 2004) (stating that a juror may be excluded from a jury for concerns of “impartiality”). Yet, the trial court inexplicably found that Ms. Genovese failed to meet the “race-neutral” test enunciated in Melbourne and its state and federal predecessors. This was tantamount to a finding that Ms. Genovese’s stated reason for exercising a challenge on C.W. was pretextual with nothing in the record to substantiate that finding. See Young, 744 So. 2d at 1082. As stated in Melbourne, “peremptories are presumed to be exercised in a nondiscriminatory manner.” See 679 So. 2d at 764; see also Hayes v. State, 94 So. 3d at 464 (same).

Furthermore, under the Melbourne test, it was the appellants and not the appellees who had the burden to prove “purposeful racial discrimination.” See 679 So. 2d at 764. Instead of recognizing the fallacy in appellants’ argument and holding them to their burden, the trial court shifted that burden to Ms. Genovese and forced her to come up with other reasons for striking the juror. When it found those reasons to be unpersuasive, it improperly denied her challenge.

The trial court noted the applicable case law when making its ruling but chose to evaluate only one of the circumstances Melbourne states is relevant to the genuineness analysis—the racial make-up of the entire jury panel. See id. at 764 n.8. What the trial court failed to do was to (1) recognize the presumption that Ms. Genovese was exercising her preemptory challenge in a nondiscriminatory manner and (2) hold appellants to their burden of proving purposeful discrimination. See id. at 764. If the trial court had done both things, as required by Melbourne, it would have allowed Ms. Genovese to properly exercise her peremptory strike at the outset.

*6 Appellants’ only corroboration for a claim of purposeful racial discrimination was that juror C.W., as the sole African American juror left on the panel, had a right as a member of a “minority group” to serve on the jury. This court and others have repeatedly opined that this fact alone is insufficient to override a genuine race-neutral or gender-neutral challenge. While the court is permitted to evaluate the racial make-up of the jury panel as part of its analysis, see id. at 764 n.8., it cannot place undue weight on this fact, which is what the trial court did when making its ruling. See Hayes v. State, 94 So. 3d at 456 (trial court improperly used a juror’s right to serve on a jury as a justification to deny a peremptory challenge).

Only after the trial did the court acknowledge its earlier error and grant appellees’ motion for new trial. Given the fact that no new or relevant information about juror C.W. came to light during the trial (again, the court was well-aware of her husband’s occupation from the outset) and that no new or additional legal arguments were submitted to the court, it is unclear what caused the court to have this eleventh-hour epiphany. Unfortunately for the parties, this about-face occurred after three weeks of trial and a jury verdict. Nonetheless, we must affirm the trial court’s decision to grant a new trial based on its improper denial of Ms. Genovese’s peremptory challenge.

Granting new trial because the verdict was against the manifest weight of the evidence
Although the error regarding the denial of Ms. Genovese’s peremptory challenge is sufficient to affirm the order granting a new trial, we also review the concurrent reason given for the order. Here, the trial court also concluded that a new trial was warranted because the verdict in favor of Southeastern and Lafayette was against the manifest weight of the evidence. We review such orders for an abuse of discretion. See Brown v. Estate of Stuckey, 749 So. 2d 490, 497–98 (Fla. 1999).

The Florida Supreme Court has stated that a trial court can and should grant a new trial if the manifest weight of the evidence is contrary to the verdict. See Smith v. Brown, 525 So. 2d 868, 870 (Fla. 1988). This occurs when, for example, “the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.” Brown, 749 So. 2d at 497 (quoting Cloud v. Fallis, 110 So. 2d 669, 673 (Fla. 1959)).

When reviewing the trial court’s grant of a new trial based on the manifest weight of the evidence, “an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.” See id. at 497–98. Thus, if “reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.” See id. at 498. “The fact that there may be substantial, competent evidence in the record to support the jury’s verdict does not necessarily demonstrate that the trial judge abused his or her discretion in granting a new trial.” See id.

That said, it is the jury’s duty to evaluate the credibility of a witness, and the trial court should refrain from acting as an additional juror. See Smith, 525 So. 2d at 870; Fernalld v. ABB, Inc., 46 Fla. L. Weekly D542a (Fla. 4th DCA Mar. 10, 2021). After reviewing the trial court’s order listing the reasons why the manifest weight afforded the appellees a new trial, it is clear that the trial court not only re-weighed the evidence, but also acted as a seventh juror in doing so. See Midtown Enters., Inc. v. Local Contractors, Inc., 785 So. 2d 578, 582 (Fla. 3d DCA 2001) (holding that the trial court erred in granting new trial where the order showed that the reasons for its ruling were solely the credibility of the witnesses and the weight of the evidence). The record shows that each one of the five findings that the trial court labeled as “undisputed” and relied upon for its order was either disputed by the parties at trial with competent substantial evidence, conclusory in nature, or simply inaccurate.

*7 An examination of the purported findings of fact contained within the order, which the trial court claims to be “undisputed,” reveals these findings were based solely on the trial judge’s “perception” of the manifest weight of the evidence and indeed were all disputed in some form at trial. See Phar-Mor of Fla., Inc. v. Steuernagel, 550 So. 2d 548, 550 (Fla. 2d DCA 1989). In Steuernagel, the Second District reversed a similar order because the trial court made no findings that the jury was improperly influenced by considerations outside of the record. See id. Here, the only finding the trial court made regarding the jury being influenced by considerations outside of the record related to its ruling on Ms. Genovese’s peremptory strike. See Brown, 749 So. 2d at 497 (stating that the court should grant a motion for new trial when the jury has been influenced by considerations outside of the record).

Therefore, the “undisputed” nature of the five enumerated facts listed by the trial court is belied by the trial record. And because those facts do not support the trial court’s determination that the jury verdict was against the manifest weight of the evidence, we quash that basis for the order granting a new trial.

Admission of Lafayette’s driving record
We review the admission of evidence under an abuse of discretion standard. See Yang v. Sebastian Lakes Condo. Ass’n, 123 So. 3d 617, 620 (Fla. 4th DCA 2013).

Here, the trial court permitted the jury to hear evidence related to Lafayette’s driving history. This too was error. Not only was this evidence unduly prejudicial under the facts of this case, see Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 2d DCA 1977), but the citations bore no similarity to the circumstances at issue and had no relevance to the issue in the case, that is, Lafayette’s alleged negligence at the time of the accident. See Wainer v. Banquero, 713 So. 2d 1104, 1105–06 (Fla. 4th DCA 1998).

This error was compounded when in its order for new trial, the trial court listed as an “undisputed” finding of fact “[t]hat Mr. LAFAYETTE had a driving record that should have caused a loud alarm to his employers, that sooner or later tragedy would be inevitable.” In fact, there was no evidence that the administrative citations he received, including his citation for backing into a parked car, were an indicator of his competence while driving on the open road. Thus, evidence of Lafayette’s driving history should not have been in front of the jury and the trial court not only erred by allowing the history into evidence, but also by using it as a basis for its decision regarding new trial. See Wainer, 713 So. 2d at 1105. Because this is an issue that may resurface in a future proceeding, we reverse the trial court’s ruling to admit this evidence and preclude its use on retrial.

Granting a judgment notwithstanding the verdict on Southeastern’s cross-claim for damages
The standard of review for a motion for judgment notwithstanding the verdict is de novo. See Prewitt Enters., LLC v. Tommy Constantine Racing, LLC, 185 So. 3d 566, 569 (Fla. 4th DCA 2016).

Southeastern sought $41,961.83 from Moody for the damages to its tractor-trailer. Moody moved for a directed verdict arguing that he should not be liable for the total amount of damages Southeastern sought. He claimed that Lafayette was also at fault for the accident. Contrary to his assertion, the jury found Moody fully liable and awarded Southeastern all the damages it sought from Moody.

Thereafter, Moody filed a motion for judgment notwithstanding the verdict or alternatively a motion for a new trial on Southeastern’s damages claim. Despite the nature of Moody’s request, the trial court only indicated that it was granting the motion in part and denying the motion in part. In the order, the trial court ruled that Moody was only liable for the damage to the left side of the tractor-trailer where Moody’s vehicle collided with it. However, the nature, and effect, of this ruling is inconsistent with other rulings given the fact that (1) Moody also requested a new trial and (2) the trial court also granted Ms. Genovese and Moody a new trial on Ms. Genovese’s wrongful death claim.

*8 The Florida Supreme Court has held that “a new-trial order and order for [judgment notwithstanding the verdict] are mutually inconsistent and may not be granted simultaneously.” Keene Bros. Trucking, Inc. v. Pennell, 614 So. 2d 1083, 1084 (Fla. 1993) (citations omitted). However, the Court noted that “to promote judicial economy, trial judges may properly decide motions on those issues in the alternative.” Id.

But the Court also stated that these motions may only be simultaneously granted by a trial court on the “express condition” that the order granting the judgment notwithstanding the verdict only becomes effective if the order granting a new trial is reversed on appeal. See id. (quoting Frazier v. Seaboard Sys. R.R., 508 So. 2d 345, 346 (Fla. 1987)). That did not happen here.

Additionally, when viewing the evidence, and the reasonable inferences that may be drawn from it, in the light most favorable to appellants (as the non-moving party), there is support for the jury’s verdict. See Melgen v. Suarez, 951 So. 2d 916, 917–18 (Fla. 3d DCA 2007). The jury determined that Moody was fully responsible for the accident and found that he was liable for the full amount of damages sought by Southeastern. Although Moody and Genovese presented evidence to refute this conclusion (the evidence that Lafayette was distracted and could have evaded accident), appellants did present evidence that Moody was clearly at fault and that there was nothing Lafayette could have done to prevent the accident that caused extensive damage to the truck. In light of this conflicting evidence, the trial court erred in granting Moody’s motion for judgment notwithstanding the verdict, even partially. See id.; Johnson v. Swerdzwski, 935 So. 2d 57, 60–61 (Fla. 1st DCA 2006).

The trial court’s grant of Ms. Genovese’s and Moody’s motions for new trial on the wrongful death claim because of the trial court’s error in jury selection “effectively ‘disposed’ of” Moody’s motion for judgment notwithstanding the verdict. See Frazier, 508 So. 2d at 346. For this reason, we quash the trial court’s order on Moody’s motion for judgment notwithstanding the verdict and find that the issue of Southeastern’s damages on its cross-claim should be decided upon retrial.

We affirm the other issues raised by the parties on appeal, including the trial court’s denial of Genovese’s motion to amend to add a count for punitive damages. See Bistline v. Rogers, 215 So. 3d 607, 610 (Fla. 4th DCA 2017) (stating that a trial court, when ruling on a motion to add a punitive damages claim, should not simply “accept[ ] the allegations in a complaint or motion to amend as true”).

Affirmed in part, reversed in part, and remanded.

Ciklin and Conner, JJ., concur.
All Citations
— So.3d —-, 2021 WL 1397538

Footnotes

1
State v. Neil, 457 So. 2d 481 (Fla. 1984); Batson v. Kentucky, 476 U.S. 79 (1986).

2
Melbourne v. State, 679 So. 2d 759 (Fla. 1996).

Paul v. Western Express, Inc.

2021 WL 1259446

United States District Court, W.D. Virginia.
JUDY M. PAUL, Plaintiff,
v.
WESTERN EXPRESS INC., et al., Defendants.
ANDRE G.H. LE DOUX, V, Plaintiff,
v.
WESTERN EXPRESS, INC., et al., Defendants.
CASE NO. 6:20-cv-00051, CASE NO. 6:20-cv-00052
|
Filed 04/06/2021

MEMORANDUM OPINION
NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE
*1 Plaintiffs Judy M. Paul and Andre G.H. Le Doux, V, filed nearly identical complaints against Defendants Western Express, Inc., Ervin Joseph Worthy, and Roger Dale Hiatt to recover damages for personal injuries resulting from an accident involving multiple cars. Paul v. Western Express, Inc., No. 6:20-cv-51, Dkt. 1; Le Doux v. Western Express, Inc., No. 6:20-cv-52, Dkt. 1. Paul and Le Doux bring the following Virginia law claims: against Worthy, negligence claims for compensatory damages and willful and wanton negligence claims for punitive damages; against Western Express, vicarious liability claims and direct negligence claims, both for compensatory damages; and against Hiatt, negligence claims for compensatory damages. Paul & Le Doux, Dkts. 1.

Western Express filed motions to dismiss Paul and Le Doux’s direct negligence claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). Paul, Dkt. 14; Le Doux, Dkt. 10. Worthy filed motions to dismiss Paul and Le Doux’s willful and wanton negligence claims for punitive damages against him pursuant to Federal Rule of Civil Procedure 12(b)(6). Paul, Dkt. 16; Le Doux, Dkt. 12. Defendants’ briefs in support of their motions in the two cases are identical, and Defendants argued the motions in both cases simultaneously at the hearing. Both cases have since been consolidated. See Paul, Dkt. 52; Le Doux, Dkt. 32. Accordingly, the Court addresses all four motions in this Memorandum Opinion.

The Court will grant Western Express’s motions to dismiss the direct negligence claims against it without prejudice but will deny Worthy’s motions to dismiss the willful and wanton negligence claims for punitive damages against him.

I. ALLEGED FACTUAL BACKGROUND
For the purposes of ruling on the motions to dismiss, the Court accepts as true the following allegations set forth in the complaints.

On August 11, 2018, at approximately 5:07 PM, Paul was driving southbound in the left lane of I-81 near mile marker 184.8 in Rockbridge County, Virginia. Paul & Le Doux, Dkts. 1 ¶ 11. It was misty and raining. Id. Because the cars in front of her were slowing down or stopped because of the hazardous driving conditions, Paul also slowed down or stopped. Id. Le Doux, who was driving in the same lane behind Paul, slowed down or stopped, too. Id. Hiatt, who was driving in the same lane behind both Paul and Le Doux, “negligently, carelessly and recklessly fail[ed] to sufficiently slow or stop” and struck the back of Le Doux’s car, which then struck Paul’s car. Id. ¶¶ 12–14. Hiatt then spun off the road. Id. ¶ 13.

Worthy, a Western Express truck driver, was driving a tractor-trailer in the right lane of I-81. Id. ¶¶ 15, 19. The rain and mist had made the road slippery and wet and had reduced visibility. Id. These “hazardous conditions” required “extreme caution” under Federal Motor Carrier Safety Regulation (“FMCSR”) § 392.14. Id. Even though he had a duty to exercise reasonable care under the circumstances according to the FMCSRs, id. ¶ 16, Worthy “negligently, carelessly, recklessly, willfully, and/or wantonly” crashed into both Paul and Le Doux. Id. ¶ 17. Specifically, Worthy “fail[ed] to maintain proper control” of the tractor-trailer, “fail[ed] to keep a proper lookout,” “dr[ove] too fast for existing conditions,” “us[ed] cruise control … in hazardous conditions,” and “follow[ed] traffic ahead too closely.” Id. ¶ 18.

*2 As a result of the crash, Paul suffered “traumatic brain damage” from internal bleeding and a “concussion with loss of consciousness,” “injury to her spine … requiring multiple surgeries,” “internal degloving” in her thigh, and other traumatic injuries. Paul, Dkt. 1 ¶ 17. Le Doux suffered a “brain injury with internal brain bleeding and swelling of the brain.” Le Doux, Dkt. 1 ¶ 17.

II. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint to determine whether a plaintiff has properly stated a claim. The complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), with all allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff’s favor. King v. Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016). A motion to dismiss “does not, however, resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Id. at 214.

Although the complaint “does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). A court need not “accept the legal conclusions drawn from the facts” or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (internal quotations omitted). And the court cannot “unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678–79. This is not to say Rule 12(b)(6) requires “heightened fact pleading of specifics”; instead, the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Still, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.

III. ANALYSIS
A. Direct Negligence Claims Against Western Express
Western Express moves to dismiss the direct negligence claims against it.

Paul and Le Doux both allege that Western Express, as a registered motor carrier, was required to comply with “applicable safety regulations contained in 49 C.F.R. Part 390, including safety regulations pertaining to management, maintenance, operation, or driving of commercial vehicles, and the hiring, supervision, training, assigning, or dispatching of drivers.” Paul & Le Doux, Dkts. 1 ¶ 7. They also allege that Western Express violated FMCSR § 390.11 by breaching its duty “to require [Worthy’s] observance of the knowledge and skills necessary to operate a commercial motor vehicle safely” before “dispatch[ing]” him. Id. ¶ 20. Id. ¶ 20. Both Paul and Le Doux state that “[t]his allegation is a factual contention which will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Id.

Under Virginia law, a plaintiff may establish a negligence claim by showing (1) a legal duty, (2) a breach or violation of that duty, and (3) proximate causation resulting in injury. Atrium Unit Owners Ass’n v. King, 585 S.E.2d 545, 548 (Va. 2003). “The finding of a legal duty is a prerequisite to a finding of negligence.” Quisenberry v. Huntington Ingalls Inc., 818 S.E.2d 805, 809 (Va. 2018) (internal quotation marks and citation omitted). “Without a legal duty there can be no cause of action for an injury.” Id. (internal quotation marks and citation omitted). “General negligence principles require a person to exercise due care to avoid injuring others” who are “within reach of [that person’s] conduct.” Id. at 809–10 (quoting RGR, LLC v. Settle, 764 S.E.2d 8, 16–17 (Va. 2014)) (internal quotation marks omitted). “[A] statute may define the standard of care to be exercised where there is an underlying common-law duty.” Williamson v. Old Brogue, Inc., 350 S.E.2d 621, 624 (Va. 1986). But “the violation of a statute does not, by that very fact alone, constitute actionable negligence ….” Id.

*3 The FMCSRs “provide rules for the commercial trucking industry that are intended to promote highway safety.” Soo Line RR Co. v. Werner Enters., 825 F.3d 413, 419 (8th Cir. 2016). See also Commercial Standard Ins. Co. v. Robertson, 159 F.2d 405, 410 (6th Cir. 1947) (finding that one of the purposes of the statute authorizing the promulgation of the FMCSR was “the protection of the public on highways of interstate commerce from the hazards of operation by inexperienced, incompetent and unfit persons, by those engaged in excess of maximum hours, or operating with bad conditioned and dangerous equipment”). In relevant part, FMCSR § 390.11 states:
Whenever in part 325 of subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.
49 C.F.R. § 390.11.

Paul and Le Doux have not alleged sufficient facts to state a plausible claim of direct negligence against Western Express for violating FMCSR § 390.11. Of course, Western Express has a general duty to “exercise due care to avoid injuring” members of the public sharing the roadways with its trucks. Quisenberry, 818 S.E.2d at 809–10. FMCSR § 390.11 defines that standard of care by making it the “duty of the motor carrier to require” its drivers to observe the duties or prohibitions that the FMCSRs impose on them. But Paul and Le Doux do not allege any facts supporting a reasonable inference that Western Express breached its duty under FMCSR § 390.11 to require Worthy to observe his duties under the FMCSRs. If anything, Paul and Le Doux allege that Worthy did receive “specialized safety training” regarding the FMCSRs, but “[n]otwithstanding” and “despite” this training, he “consciously chose” to drive in ways that did not conform to the FMCSRs by failing to reduce his speed, continuing to use cruise control, and failing to exercise “extreme caution” under “hazardous conditions.” Paul & Le Doux, Dkts. 1 ¶ 23. The complaints’ allegations, therefore, are insufficient to state a plausible direct negligence claim against Western Express.1

Accordingly, the Court will grant Western Express’s motions to dismiss the direct negligence claims against it without prejudice.

B. Willful and Wanton Negligence Claims/Punitive Damages Requests Against Worthy
Next, Worthy moves to dismiss Paul and Le Doux’s requests for punitive damages.

To begin, “punitive damages is not a cause of action subject to dismissal under Rule 12(b)(6).” Charles v. Front Royal Volunteer Fire & Rescue Dep’t, Inc., 21 F. Supp. 3d 620, 631 (W.D. Va. 2014) (internal quotation marks and citation omitted).

Assuming that addressing punitive damages at the motion to dismiss stage is proper, “[a] claim for punitive damages at common law in a personal injury action must be supported by factual allegations sufficient to establish that the defendant’s conduct was willful or wanton.” Woods v. Mendez, 574 S.E.2d 263, 268 (Va. 2003). “Willful and wanton negligence is acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Curtis v. Highfill, 840 S.E.2d 321, 324 (Va. 2020) (internal quotation marks and citation omitted).

*4 The intentional violation of a traffic law, without more, is not willful and wanton negligence. See Harris v. Harman, 486 S.E.2d 99, 102 (Va. 1997) (striking willful and wanton conduct claim against defendant who tailgated plaintiff’s vehicle while speeding 10 to 30 mph over the 30-mph speed limit); Clohessy v. Weiler, 462 S.E.2d 94, 97 (Va. 1995) (striking willful and wanton conduct claim against defendant who drove at night without headlights and with a fogged windshield while speeding 10 mph over the speed limit and hit a pedestrian walking in the street).

But where a professional truck driver has “received specialized safety training warning against the very omissions he made prior to the accident,” the Supreme Court of Virginia has held that the issues of willful and wanton negligence and corresponding punitive damages are for the jury. Alfonso v. Robinson, 514 S.E.2d 615, 619 (Va. 1999). In Alfonso, the defendant truck driver had been “instructed” to deploy safety flares and reflective triangles after his truck broke down to “warn motorists that they were approaching a stopped vehicle.” Id. Instead, “consciously” disregarding his “training and knowledge,” he left the truck “in a travel lane of an interstate highway without placing any warning devices behind it.” Id. “Such evidence that a defendant had prior knowledge or notice that his actions or omissions would likely cause injury to others is a significant factor in considering issues of willful and wanton negligence.” Id. Courts in this district have relied on Alfonso in denying motions to dismiss willful and wanton negligence claims for punitive damages against professional truck drivers. See Madison v. Acuna, No. 6:12-cv-28, 2012 WL 6196450, at *4 (W.D. Va. Dec. 12, 2012) (denying motion to dismiss where plaintiff alleged that truck driver “received a specific warning about the dangers of driving” in violation of “the fourteen-hour rule, [which] put him on notice that injury could result from conduct likely to cause sleep deprivation”); Stanley v. Star Transp., Inc., No. 1:10-cv-10, 2010 WL 3433774, at *1 (W.D. Va. Sept. 1, 2010) (finding allegations that truck driver “acted wantonly by driving in a sleep-deprived condition at night over a snow-and ice-covered road at an excessive rate of speed, without a functioning collision avoidance system” sufficient to survive motion to dismiss); Baker v. Oliver, No. 3:06-cv-15, 2006 WL 1700067, at *1 (W.D. Va. June 15, 2006) (denying motion to dismiss where plaintiff alleged that truck driver, whose truck had no reflective markings, pulled out of a driveway onto a road without using turn signals or emergency flashers).

Here, Paul and Le Doux allege that Worthy was a professional truck driver who “received specialized training” in applicable safety procedures “contained in” the FMCSRs. Paul & Le Doux, Dkts. 1 ¶ 23(a). But “[n]otwithstanding the specialized safety training [he] received,” Worthy “consciously chose to operate the heavy tractor-trailer in hazardous conditions without reducing his speed appropriately … and without exercising the required extreme caution” and “consciously chose to abrogate his speed control of the heavy tractor-trailer rig to the cruise control in hazardous conditions,” in violation of § 392.14. Id. ¶ 23(b)–(e). In addition, “despite the specialized training in the knowledge and skills required by the [FMCSRs],” Worthy “consciously … [d]id not conduct proper use of the motor vehicle’s safety system in his use of the cruise control … ; [d]id not adjust his speed to the configuration and condition of the roadway … ; [d]id not maintain a safe following distance … ; [and d]id not adjust operation of the motor vehicle to prevailing weather conditions,” in violation of §§ 383.111 and 383.113. Id. ¶ 23(f)–(h).

*5 Drawing all reasonable inferences in favor of Paul and Le Doux, because Worthy was instructed in and knew about FMCSRs requiring him to exercise “extreme caution” in “hazardous conditions” but nevertheless continued to drive too fast for the rainy conditions, a reasonable jury could find that Worthy consciously disregarded his training in and knowledge of the FMCSRs and thus acted in a willful and wanton manner.

Accordingly, the Court will deny Worthy’s motions to dismiss the willful and wanton negligence claims for punitive damages against him.

IV. CONCLUSION
For the foregoing reasons, the Court concludes that the complaints’ factual allegations state plausible willful and wanton negligence claims for punitive damages against Worthy but fail to state plausible direct negligence claims against Western Express. Accordingly, the Court will grant Western Express’s motions to dismiss the direct negligence claims against it without prejudice, but it will deny Worthy’s motions to dismiss the willful and wanton negligence claims for punitive damages against him.

An appropriate Order will issue.

The Clerk of Court is directed to send this Memorandum Opinion to all counsel of record.

Entered this 6th day of April, 2021.

All Citations
Slip Copy, 2021 WL 1259446

Footnotes

1
If, however, discovery provides a factual basis to support direct negligence claims against Western Express, Paul and Le Doux may move to amend their complaints.

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